Allahabad High Court
Govind Swarup Saraswat And Others vs State Of U.P. And Another on 25 August, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 2.8.2022 Delivered on 25.8.2022 Court No. - 82 Case :- WRIT - A No. - 3204 of 2007 Petitioner :- Const. Manoj Kumar Respondent :- Union Of India And Others Counsel for Petitioner :- O.P. Agarwal,Santosh Kesarwani,Sudhanshu Pandey,Yogendra Kumar Counsel for Respondent :- A.S.G.I.,Himkanya Srivastava,SC,Siddharth Saran Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri.Santosh Kumar Kesarwani, learned counsel for petitioner and Himkanya Srivastava, learned counsel for Union of India.
2. This writ petition is directed against order dated 30.6.2004, whereby the disciplinary authority has passed the punishment order of reduction of pay to lower stage for a period of three years in time scale of Rs.3050-75-3590-80-4500/- with a further direction that he will not earn increment during the period of reduction and he will have postponement on his future increments also. Appeal as well as revision thereof were also dismissed vide impugned orders dated 18.5.2005 and 17.4.2006 respectively.
3.Petitioner was dealt with under Rule 36 of Central Industrial Security Force Rules, 2001 by the Commandant CISF Unit OTHPP Obra vide charge Memorandum No.(3194) dated 31.12.2003 on the following charges:-
Article of charge-I " बल क्रमांक 922296019 आरक्षक मनोज कुमार, केऔसुब इकाई ओताविप ओबरा के विरुद्ध घोर अनुशासनहीनता एवं दुराचरण का आरोप है, कि वह दिनांक 25.11.2003 को समय लगभग 20:30 बजे म0प्र0 विधान सभा चुनाव-2003 कर्त्तव्य के दौरान कुरावर पुलिस स्टेशन सब्जी मंडी धर्मशाला में आरक्षक राजेन्द्र सिंह तथा आरक्षक बी एस यादव के साथ चुनाव जैसे संवेदनशील कर्त्तव्य के दौरान शराब का सेवन कर आरक्षक जी मुरली के साथ गाली-गलौज किया, तत्पश्चात आरक्षक राजेन्द्र सिंह द्वारा आरक्षक जी मुरली को गाली दिए जाने तथा अशिष्ट व्यवहार किए जाने पर आरक्षक जी मुरली ने अपनी सर्विस रायफल .303 से समय लगभग 22:30 बजे आरक्षक राजेन्द्र सिंह के उपर एक राउण्ड फायर कर दिया, परिणाम स्वरुप उसकी कुछ समय बाद ही मृत्यु हो गयी।"
4. Petitioner has submitted a written statement on 16/17.1.2004 wherein he denied the charge levelled against him. The Disciplinary Authority appointed an Investigating Officer for conducting disciplinary inquiry who after taking statements and granting opportunity to cross-examine submitted a inquiry report that charge was proved against the petitioner. A copy thereof was served upon the petitioner to which he submitted reply. Subsequently, disciplinary authority after considering the statement of witnesses, their cross-examination and documentary evidence, awarded the above referred punishment.
5. Learned counsel for petitioner vehemently urged that charge against the petitioner even if tested at threshold of principles of preponderance of probability cannot be considered to be proved.
6. Learned counsel pointed out that during inquiry, as many as statement of 12 witnesses were recorded and were cross-examined by the petitioner also. However, only two witnesses have supported the charge framed against petitioner and for that counsel for petitioner has read out relevant part of the inquiry report. Counsel for petitioner further submitted that in the article of charge, petitioner was alleged to be under influence of liquor, however, he was not medically examined and it would be relevant when out of dozen witesses only two have supported the charge. In this regard counsel for petitioner has placed reliance upon a judgment of Supreme Court in Munna Lal Vs. Union of India & Ors, (2010) 15 SCC 399 as well as Dashrath Singh Vs. State of U.P. & Ors, 2022 (6) ADJ 486, that in the absence of medical examination the finding that delinquent was under the influence of liquor would become erroneous.
7. Counsel for petitioner also pointed out that so far as other allegations are concerned that he indulged with one Ct. G. Murli and used unparliamentary language which instigated Ct. G. Murli to shot from his service rifle due to which colleague Ct. Rajender Singh died, was also not proved by witnesses except two witnesses and in this regard, counsel for petitioner read out the cross-examination of P.W.1 and P.W.2 as mentioned in the inquiry report that the only evidence which came in this statement was that the petitioner misbehaved with Ct. G. Murli, but there was no evidence that he instigated or due to his alleged verbal exchange of unparliamentary language with Ct. G. Murli, he was instigated to extent that he shot his colleague. Counsel for petitioner further submitted that the findings arrived by the inquiry officer as well as by the disciplinary authority are perverse, therefore, the punishment awarded to petitioner is liable to be set-aside.
8. Per contra, learned Counsel appearing for the Union of India has supported the impugned orders and submitted that the standard of prove a charge in the disciplinary proceedings is preponderance of probability and during the inquiry P.W.1 and P.W.2 in very specific words have supported contents of the charge that petitioner was under influence of liquor, misbehaved with his colleague Ct. G. Murli who being instigated shot his colleague with his service rifle and their version remained consistent in cross-examination also, therefore, the evidence of other witnesses who might have not supported the charge would be meaningless. Counsel also pointed out that all witnesses have not disputed presence of petitioner at the place of occurrence.
9. The last issue of punishment did not appear to be shockingly disproportionate, therefore, it cannot be interfered with.
10. Heard learned counsel for parties and perused the record.
11. The above submissions are tested under the limited scope of review of order passed in disciplinary proceedings as provided under Article 226 of the Constitution.
12. In this regard, paragraph nos.21,22,23,24 and 25 of Union of India & Ors. Vs. Dalbir Singh, (2021) 11 SCC 321 are relevant which are mentioned hereinafter:
"21 This Court in Union of India & Ors. Vs. P. Gunasekaran, (2015) 2 SCC 610 had laid down the broad parameters for the exercise of jurisdiction of judicial review. The Court held as under: (SCC pp.616-17, paras 12-13) "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
22. In another Judgment reported as B.C.Chaturvedi Vs. Union of India & Ors, (1995) 6 SCC 749, it was held that the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. The Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Court is to examine as to whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. This Court held as under:- (SCC pp.759-60, paras 12-13) "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as 5 (1995) 6 SCC 749 no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
23. This Court in Management of Tamil Nadu State Transport Corporation (Coimbatore) Limited v. M. Chandrasekaran, (2016) 16 SCC 16 held that in exercise of power of judicial review, the Labour Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the enquiry officer and in substituting his own judgment to that of the disciplinary authority. It was not a case of no legal evidence. The question as to decision of the disciplinary authority of dismissing the respondent is just and proper could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of res ipsa loquitur squarely applies to the fact situation. The Court held as under: (SCC p.21, para 11) "11. The respondent on the other hand contends that the Commissioner has applied the well-settled legal position that there can be no presumption of misconduct by the employees. That, charge must be proved by the Department during the inquiry. Non-examination of the material witnesses such as eyewitnesses present on the spot, conductor and passengers, travelling on the same bus was fatal. For, it entails in not substantiating the charges against the respondent and failure to discharge the initial onus resting on the Department to prove the charge as framed. According to the respondent, no fault can be found with the tangible reasons recorded by the Commissioner as noticed by the Single Judge (reproduced above); and resultantly, the conclusion of the Commissioner of not according approval to the order of dismissal is just and proper. It is submitted that the Single Judge was justified in allowing the writ petition preferred by the respondent and issuing direction to the appellant to reinstate him with back wages and continuity of service and all attendant benefits accrued to him."
24. This Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia & Ors., (2005) 7 SCC 764, held that the degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". It was held as under: (SCC p.776, para 11) "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside ." (Emphasis Supplied)
25. This Court in Noida Entrepreneurs Association v. NOIDA & Ors., (2007) 10 SCC 385 held that the criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service. It was held as under: (SCC p.392, para 11) "11. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental inquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular v. Union of India [(1994) 6 SCC 651 and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130. The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442 : 2004 SCC (L&S) 1011] , Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471 : 2005 SCC (Cri) 1605] and Uttaranchal RTC v. Mansaram Nainwal [(2006) 6 SCC 366 : 2006 SCC (L&S) 1341].
"8. ... The purpose of departmental inquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offense for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in the criminal cases against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offense generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When the trial for a criminal offense is conducted it should be in accordance with proof of the offense as per the evidence defined under the provisions of the Indian Evidence Act, 1872 [in short ''the Evidence Act']. The converse is the case of departmental inquiry. The inquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. ... Under these circumstances, what is required to be seen is whether the departmental inquiry would seriously prejudice the delinquent in his defense at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
13. In the present case, no argument is raised in regard to procedural aspect of the inquiry. Now, Court proceeds to consider oral arguments under limited power to review, that out of 12 witnesses only two had supported the charge. The statement and crossexamination of said two witnesses in respect of guilt of the petitioner, has support of conclusion of Inquiry Officer as well as of Disciplinary Authority and thereafter only on ground that other witnesses had not supported would itself not vitiated the conclusion. It cannot be held that there was no legal evidence on which findings were based as well this Court cannot sit as appellate authority to re appreciate the evidence. So far as medical examination of delinquent is concerned, influence of liquor was not only charge as it was coupled with that he misbehaved with other colleagues, which was proved by two witnesses, therefore absence of medical examination would not be sufficient to set-aside the punishment order, though it has repeatedly come in the evidence that petitioner was not under influence of liquor.
14. In view of above as well as very limited power of review as well as present case is not a case that finding is based on no evidence. This court cannot go into adequacy and reliability of the evidence. This Court cannot interfere with the conclusion in the enquiry in case the same has been conducted in accordance with law. In absence of any legally sustainable ground for interference, the writ petition is dismissed.
Order Date :- 25.8.2022 SB